Citation Nr: 9911560
Decision Date: 04/28/99 Archive Date: 05/06/99
DOCKET NO. 94-15 219 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Martin F. Dunne, Counsel
INTRODUCTION
The veteran served on active duty in the Armed Forces from
April 1969 to September 1972.
In September 1987, the veteran's claim for service connection
for post-traumatic stress disorder (PTSD) was denied. He did
not appeal that decision.
The matter currently on appeal comes before the Board of
Veterans' Appeals (Board) on appeal from a September 1993
rating decision by the Department of Veterans Affairs (VA)
Regional Office (RO) in Chicago, Illinois, that determined
that no new and material evidence had been submitted to
reopen the claim of service connection for PTSD. The veteran
submitted a substantive appeal in March 1994 and requested a
personal hearing to be held at the RO before a Member of the
Board. The hearing was scheduled for November 1995; however,
it was not held due to a Government shut down. In November
1995, the veteran notified the RO that he no longer wanted a
hearing and requested that his claims file be transferred to
the Board for appellate determination on the issue of whether
new and material evidence had been presented to reopen a
claim for service connection for PTSD.
In June 1996, the Board remanded the case to the RO for
compliance with due process requirements. While the case was
at the RO, the veteran requested a personal hearing to be
held at the RO before a Member of the Board. In June 1995,
the veteran notified the RO that, instead of a hearing before
a Member of the Board, he would like to have the personal
hearing held before a hearing officer. That hearing was held
in September 1997. In a February 1998 decision, an RO
hearing officer reviewed the claim on a de novo basis, and
denied on the merits. The veteran was informed of the
hearing officer's decision in a February 1998 Supplemental
Statement of the Case.
As a preliminary matter, the Board notes that, because the
prior denial was based on the absence of a diagnosis of PTSD,
and there currently is a diagnosis of PTSD of record, the
Board agrees with the hearing officer that de novo
consideration of the claim is appropriate; hence, the issue
has been recharacterized accordingly.
FINDINGS OF FACT
1. All relevant evidence necessary for the equitable
disposition of this appeal has been obtained by the RO.
2. Although the veteran does not contend, and his service
records do not clearly establish, that he engaged in combat
with the enemy, the RO has verified that, during service, the
veteran's base was subject to mortar/rocket attack during the
veteran's Vietnam tour.
3. Although a VA physician has diagnosed the veteran as
having PTSD, the majority of physicians have diagnosed the
veteran as suffered from schizophrenia rather than PTSD, and
the record contains no diagnosis of PTSD specifically based
upon the veteran's verified in-service stressor.
CONCLUSION OF LAW
The criteria for service connection for PTSD are not met.
38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. §§ 3.303,
3.304(d)(f) (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Background
The veteran served his entire active duty service in the
Army. His military records show that he was a duty soldier
and heavy vehicle driver. He served in Vietnam from January
1970 to November 1970 with the 228th Supply and Service
Company (288th S&S Co), 148th S&S Co, and the 54th Ordnance Co.
He was awarded the National Defense Service Medal, Republic
of Vietnam Campaign Medal, and Vietnam Service Medal.
The veteran essentially contends, in both written statements
and in testimony he presented during his September 1997
personal hearing before a hearing officer at the RO, that he
has PTSD as the result of his experiences in Vietnam. He
maintains that on his way to Vietnam in 1970 his airplane
almost crashed but that it was able to turn around and make
it safely back to Anchorage, Alaska. He testified that in
Vietnam he was stationed at an air base in Tay Ninh where
rockets and mortars came in at any time; that he was involved
in firefights; and his duties included bunker guard duty and
driving a petroleum truck. He also testified that while
incarcerated in the Ft. Levenworth military prison from 1971
to 1972, he underwent psychological testing.
The veteran's service medical records do not reflect any
complaints, symptomatology or treatment for an acquired
psychiatric disorder. The psychiatric portions of both his
May 1968 induction examination and his September 1972
separation examination were normal, and neither report
indicates any history of a psychiatric disorder.
The veteran's file contains a list from the Illinois
Department of Mental Health indicating the veteran's various
hospitalizations in state institutions, beginning in February
1973 for an acute psychotic episode, inadequate personality
in March 1973, and all subsequent hospitalizations through
July 1979 for schizophrenia.
The veteran was hospitalized in a VA medical facility from
May to June 1979 and from July to August 1979 for
schizophrenia. He was also hospitalized for various short
periods throughout 1979 at Tinley Park Mental Health Center
and Chicago Reed Mental Health Center for acute psychotic
episodes, inadequate personality, paranoid schizophrenia, and
paranoid schizophrenia associated with drug abuse and
alcoholism.
The veteran underwent VA psychiatric examination in August
1980. The diagnosis was paranoid schizophrenia. From
September to October 1981, he was hospitalized in a VA
medical facility for schizophrenia and from August 1984 to
March 1985 he attended VA group therapy for schizophrenia.
His VA outpatient treatment records for 1981 through 1987
show treatment for schizophrenia. The veteran's April 1987
VA psychiatric examination diagnosed undifferentiated
schizophrenia. In March 1990, he was hospitalized in a VA
medical facility for alcohol and marijuana dependence and for
schizophrenia. In December 1992, his VA hospitalization was
for schizoaffective disorder with psychosis and mania.
On file is a letter dated in February 1993 from United
Airlines relating that their records did not go back far
enough to verify the veteran's assertion concerning his plane
that was taking him to Vietnam.
The report of the veteran's June 1993 VA psychiatric
examination reflects a diagnosis of chronic undifferentiated
schizophrenia, in partial remission. The examiner also noted
that the veteran had difficulty describing in any detail what
his traumatic events were while in Vietnam. The examiner
further noted that the veteran tended to think a lot about
Vietnam and does have some symptoms of PTSD, although he does
not quite meet the criteria. The physician also related that
the veteran appears to have a serious mental disorder,
probably schizophrenia, although schizoaffective disorder is
also possible, and his schizophrenia appears to be
responsible for his disability. The frequency of his
hospitalizations, which has been about two per year for
twenty years, and the severity of his symptoms would
definitely make it difficult for him to form and keep
relationships or to hold a job.
In a letter dated in November 1995, a VA physician from the
Lakeside VA Medical Center (VAMC) related that the veteran
was a patient of his and that he is receiving treatment in
the mental health clinic for PTSD and schizoaffective
disorder. The physician further related that the veteran's
PTSD disorder resulted from his combat exposure in Vietnam
and that he continues to have flashbacks, nightmares, and
delusions of those experiences. He is hypervigilant,
startles easily, and still has sleeping difficulties. The
veteran has to avoid situations that might remind him of his
Army experiences. He has had many psychiatric admissions,
about thirty, both in VA facilities and state hospitals.
The veteran's numerous outpatient treatment records from
Lakeside, Hines, and North Chicago VAMC's for January 1989
through July 1996 consistently show that the veteran was
receiving treatment for schizophrenia. However, nowhere in
any of those records is there a diagnosis of PTSD nor is
there any indication or showing that the veteran ever was
treated for PTSD.
In March 1998, the VA received notification for the National
Personnel Records Center that no medical records were found
pertaining to the veteran at the Ft. Levenworth hospital for
the period of May 1971 to September 1972. In response to VA
inquiry, the U.S. Armed Services Center for Research of Units
Records (USASCRUR) submitted extracts of an Operational
Report - Lessons Learned for the period ending April 30, 1970
from the 29th General Support Group, the higher headquarters
of the units to which the veteran was a member while in
Vietnam. These document attacks against Tay Ninh, the
documented base camp area location of the 228th S&S Co during
the veteran's Vietnam tour. The USASCRUR was unable to
document that the veteran was a perimeter guard or refueled
helicopters. They could only verify that he was a heavy
vehicle driver and a general duty soldier assigned to supply
and ordnance units during his Vietnam tour.
The veteran underwent another VA psychiatric examination in
November 1998. The report of the examination reflects that
the veteran manifested persistent auditory hallucinations,
command type, and that he had impaired impulse control when
noncompliant with medication. The examiner remarked that the
veteran has been consistently diagnosed with schizophrenic
disorder, even when there is a request for examination of
PTSD. During the November 1998 examination, the physician
found no symptomatology that met the criteria for a diagnosis
of PTSD. The diagnosis was schizophrenic disorder.
Analysis
To establish service connection, the evidence must
demonstrate that a particular disease or injury resulting in
current disability was incurred during active service or, if
preexisting active service, was aggravated therein.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. As VA recognizes that
symptoms attributable to PTSD often do not appear in service,
service connection for PTSD requires: (1) a clear, current
medical diagnosis of PTSD; (2) credible supporting evidence
that the claimed in-service stressor actually occurred; and
(3) medical evidence of a causal nexus between current
symptomatology and the specific claimed in-service stressor.
See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128
(1997).
In the case at hand, the veteran has presented a VA
physician's diagnosis of PTSD based on the veteran's
experiences in Vietnam. This opinion is sufficient to well
ground the claim. See 38 U.S.C.A. § 5107(b); Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). The question remains,
however, as to whether the veteran, in fact, has a credible
diagnosis of PTSD when this question is considered in light
of the remaining criteria for service connection for the
condition: namely, credible evidence that the claimed
stressor(s) actually took place, and of a nexus between the
stressor and the veteran's symptoms.
The evidence necessary to establish the occurrence of a
recognizable stressor during service to support a diagnosis
of PTSD will vary depending upon whether the veteran engaged
in "combat with the enemy," as established by recognized
military combat citations or other official records. See,
e.g., Doran v. Brown, 6 Vet. App. 283, 289 (1994); Hayes v.
Brown, 5 Vet. App. 60, 66 (1993).
If the VA determines the veteran engaged in combat with the
enemy and his alleged stressor is combat-related, then his
lay testimony or statement is accepted as conclusive evidence
of the stressors occurrence and no further development or
corroborative evidence is required - provided that such
testimony is found to be "satisfactory," i.e., credible,
and "consistent with the circumstances, conditions,
or hardships of service." See 38 U.S.C.A. § 1154(b); 38
C.F.R. 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).
Here, the veteran does not specifically contend, and the
evidence does not clearly establish, that the veteran engaged
in combat during his Vietnam service. In Vietnam, he was
assigned as a general duty soldier and heavy vehicle driver
assigned to supply and ordnance companies. As a supply
soldier, driver, he normally would not typically be
associated with actual combat. His military personnel
records do not show that he engaged in combat with the enemy,
and his awards and decorations do not include any
specifically for combat service.
That notwithstanding, the fact that the veteran's base was
subject to mortar/rocket attack during his Vietnam service
has been corroborated by the Unit Records Center. However,
as the record contains no credible evidence that the veteran,
in fact, has PTSD as result of such verified in-service
stressful experiences, the Board must conclude that the
criteria for service connection for PTSD are not met.
In this regard, the Board acknowledges, as noted above, that
in a November 1995 letter, a VA physician indicated that the
veteran is receiving treatment in the mental health clinic
for PTSD and schizoaffective disorder. However, this
diagnosis of PTSD is not credible, inasmuch as the examiner
indicates that the basis for the diagnosis "combat exposure
in Vietnam" (not specifically alleged in connection with
this claim, or clearly shown, as noted above), and does not
specifically identify any particular in-service stressful
experience underlying the diagnosis; hence, he also does not
indicate how the veteran's symptoms relate to any such
stressor. The Board is not bound to accept as credible a
diagnosis of PTSD that is not based upon a recognizable
stressor. See Swann v. Brown, 5 Vet. App. 229, 233 (1993).
It is also significant that, at the time the VA physician's
statement was submitted, no in-service stressful experience
had then been verified.
Furthermore, the majority of the medical evidence does not
support a finding that the veteran currently has PTSD. The
veteran's numerous outpatient treatment records from
Lakeside, Hines, and North Chicago VAMC's for January 1989
through July 1996 consistently show that the veteran was
receiving treatment for schizophrenia. Nowhere in any of
those records is there a diagnosis of PTSD nor is there any
indication or showing that the veteran ever was treated for
PTSD. Furthermore, the only medical opinion rendered after
the verification of the veteran's in-service stressor is the
report of the November 1998 VA examiner who rendered a
diagnosis of schizophrenic disorder and specifically related
that he had found no symptomatology that met the criteria for
a diagnosis of PTSD. The diagnosis of schizophrenia is
consistent with all other diagnoses contained in the
veteran's numerous medical records, both VA and non-VA,
spanning from 1973 to 1998, even when examined specifically
for PTSD. The Board that the November 1998 medical opinion
is highly probative on the question of whether there is
credible medical evidence that the veteran has PTSD as a
result of his verified in-service stressor since the
diagnosis was based upon consideration of the veteran's
documented medical history and was made in light of
contemporaneous psychiatric examination. Thus, the Board
finds that the 1998 VA psychiatrist's diagnosis of
schizophrenic disorder clearly outweighs the unsubstantiated
diagnosis of PTSD related by a VA physician in a letter of
November 1995.
In determining whether a claimed benefit is warranted, VA
must determine whether the evidence supports the claim or
whether the evidence is in relative equipoise, with the
veteran prevailing in either event, or whether the
preponderance of the evidence is against the claim, in which
case the claim is denied. See 38 U.S.C.A. § 5107(a); Gilbert
v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Under the
circumstances of this case, the Board must conclude that the
preponderance of the evidence is against the veteran's claim
for service connection for PTSD. As such, the claim for the
benefits sought must be denied.
ORDER
Service connection for PTSD is denied.
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals